COMPARING REAL ESTATE TO MEDICAL PROFESSIONS
Comparing the disclaimer clause and the informed
1. LAW OF TORT - DEFINITION
Definition: Tort is a breach of duty imposed by law,
making the offender (defendant) liable to action for
causing damage or injury to the plaintiff.
It is a body
of law that addresses and provides remedies for
civil wrongs not arising out of contractual
2. LAW OF
TORT - DUTY OF CARE - TEST
Duty of Care - "But For" Test
A test of duty of care is: "You must take reasonable
care to avoid acts and omissions that you can
reasonably foresee, would be likely to injure your
The cause of damage is established by the "but
The court will ask - would the plaintiff (patient,
buyer, tenant, owner) has suffered the injury but
for the defendant's (doctor's, agent's)
LAW OF TORT - DUTY OF CARE - BREACH
Standard of Care - Breach.
More important in professions requiring special
skill or expertise, the person must exercise a
reasonable standard of care that must be measured.
The standard of care is measured by the
"reasonable man" test:
Whether the defendant's conduct fall below
the standard of care which is expected of the
4. LAW OF
TORT - NEGLIGENCE
To succeed in an action for negligence, the
plaintiff must show that:
- the defendant owes him a duty of care
- the defendant has beached that duty of care
- his breach causes damage/loss to the plaintiff
- the damage/loss is not too remote (not
controllable, not foreseeable, not an expert on a
particular subject matter).
5. LAW OF TORT - DISCLAIMER
1. A disclaimer (e.g in veterinary medicine, an
informed consent form signed by the pet owner or
patient) may prevent an agent (doctor) being held
liable to a 3rd party in tort arising from fiduciary
2. A disclaimer does not automatically protect an
agent (doctor) from any liability to the 3rd party.
3. For a disclaimer to be effective, it must be
firmly incorporated into the contract and
must be done at the time the contract was
4. Whether the disclaimer will be effective or not
depends on the court's interpretation of the
"reasonableness" test and the facts of each case.
A common disclaimer clause is as follows:
The vendor does not make or give and neither the
agent nor any of his employee has the authority to
make or give any representation or warranty whatever
in relation to the property.